PDFConstitutional Conventions and Election Campaigns: The Status of the Caretaker Convention in CanadaJohn Wilson

At the time this article was
written John Wilson was Professor of Political Science at the University of
Waterloo. On September 25, 1995 he appeared as a witness before the Special
Senate Committee on the Pearson Airport Agreements. This article is a revised
and expanded version of his testimony to the Committee.

The autumn issue of the Review included
an article by Professor Andrew Heard on the general nature of constitutional
conventions and discussed the kinds of constraints that face a government in
its last days. On September 25, Professor Heard appeared before the Special
Senate Committee on the Pearson Airport Agreements. At that time the Committee
also heard from Professor John Wilson and Professor James Mallory. In this
article Professor Wilson provides a different perspective on the nature of
constitutional conventions during election periods.

Many different issues are involved
in the agreements between the Government of Canada and the Pearson Development
Corporation which were authorized by the Prime Minister on October 7, 1993 and
signed on the same day by representatives of the Government and of the
Corporation. The Special Senate Committee has examined these in some detail but
it has given hardly any consideration at all to what many observers regard as
the most important element of the whole question – the status of the constitutional
conventions surrounding the event and the importance which should be accorded
them.1

Indeed, this may be the only issue
which has any significance in the debate which has been taking place since the
new Liberal Government moved to cancel the agreements. Nearly every other
aspect covers an area where there is legitimate room for different opinions
about what is acceptable and what is not – in short, about different views
based on different value systems – if only because such differences always
exist in our society and in politics nobody is necessarily right. We are all,
in our way, partisan.

But when it comes to questions of
constitutional propriety we go beyond the particular merits or otherwise of the
agreements and how a decision was reached. We are dealing instead with the
practice of government itself – the rules and forms for decision-making in our
society – and here there ought to be no room for argument. If we know what our
constitutional practice is and should be then we should always insist on its
observance.

In what follows I therefore want to
address the character of the constitutional conventions which appear to me to
apply in this instance, that is to say, what is regarded as appropriate
behaviour by a Canadian government in the period following the dissolution of
parliament and leading up to the conclusion of the ensuing general election.

Convention and the Constitution

It is important to start by
reminding ourselves of the distinction between questions of law and questions
of convention, custom, and our usual practice. In discussing the
decision-making process with respect to the Pearson Airport Agreements I am
concerned only with the latter.

I am therefore not going to refer
to anything which is written in our various constitutional documents but only
to certain unwritten customs and conventions which we have observed over the
years and which come to us as a consequence of having inherited a parliamentary
system of government from Great Britain. The distinction is of enormous
importance, if only because so much of what is fundamentally significant to the
successful operation of a parliamentary system of government is based on custom
and convention.

If one were to believe what is
written in the Constitution Act one would have to conclude that the
Governor General has absolute power. There is no mention of the Prime Minister
(except in the most minor way since the 1982 amendments) nor of the Cabinet.
Perhaps the most fundamental principle of all – that a government which has
lost the confidence of the House of Commons must resign or seek a dissolution –
is not written down anywhere. The rules, if they may be given that title, which
are involved in a decision by the Governor General to grant dissolution (or not
to grant it) remain unclear to this day, despite the conviction of some
scholars that they were settled in 1926. Many of the most important rules of
parliamentary procedure are also in place by custom only. The list is endless,
and yet all of these matters are essential elements of a parliamentary system
of government. The usage in each case is only customary and conventional, but
it is part of our constitutional practice.

We cannot make sense of how we are
governed without understanding these unwritten rules.

But debates about these kinds of questions
cannot be settled by reference to the law. Indeed, settling them at all
involves an understanding of practice over time. I suppose that the principal
distinction between law and convention is that there is an agency which
determines what the law is – the courts – but there is no similar agency to
deal with custom and convention. Sir Ivor Jennings has set out more clearly
than most commentators what is involved in these matters.

The fact that there is no
authoritative tribunal for the determination of conventions does, however,
create difficulties. They grow out of practice and their existence is
determined by precedents. Such precedents are not authoritative, like the
precedents of a court of law. There are precedents which have created no conventions,
and there are conventions based on precedents which have fallen into desuetude
....Every act is a precedent, but not every precedent creates a rule ....
Precedents create a rule because they have been recognized as creating a rule.
It is sometimes enough to show that a rule has received general acceptance.
Persons of authority for nearly a century have asserted the right of the Prime
Minister to choose his colleagues .... Persons of authority have never, so far
as is known, asserted the duty of the monarch to grant a dissolution on
request.2

It is important for what follows to
recognize Jennings’ assertion that it is "sometimes enough to show that a
rule has received general acceptance." In other words, conventions are not
founded only on a series of prior events which may be regarded as precedents;
they may also stem from the absence of particular forms of behaviour. To make
the point in a different way it may be said that the fact that a request for
dissolution has not been refused by a Governor General since 1926 should simply
be taken as evidence of the understanding of successive Canadian prime
ministers that inappropriate requests ought not to be made, rather than seen as
proof that the Governor General no longer has the power to refuse.3

Simply because nothing has happened
– or because nobody has said or done anything – there is no reason to assume
that there are no rules in place about what is acceptable. The rule in question
may say, in effect, that nothing should happen unless something ultimately to
be regarded as unacceptable takes place.

I am aware, of course, that this
interpretation of Jennings’ meaning is generally not accepted by most
constitutional theorists. Instead, they insist that there must be at least one
precedent to establish the existence of a convention,4 and they quote with
approval another, more succinct passage from the master. Recognizing the
existence of a convention, wrote Jennings, depends on three very simple
criteria.

We have to ask ourselves three
questions: first, what are the precedents, secondly, did the actors in the
precedents believe that they were bound by a rule; and thirdly, is there a
reason for the rule?5

Clearly, therefore, there must have
been prior events to establish the beginning of the alleged convention, and
without them nothing which we can reasonably call a constitutional convention
can exist. As Eugene Forsey wrote:

A constitutional convention without
a singe precedent to support it is a house without any foundation. . . . At
least one precedent is essential. If there is no precedent there is no
convention.6

But the fact is that these
statements are not only not consistent with other observations by Jennings,
they make very little rational sense.

If we are able to conceive of what
I will call "negative" practices or customs – that is to say, the
continued absence of specific kinds of behaviour – then there is every reason
to believe that in certain very special circumstances there might well be
constitutional conventions founded on exactly the same history. After all, a
history of nothing having happened when one might have expected something to
happen is as much a precedent as the more positive occurrences favoured by the
authorities. In such cases denying convention status to such rules seems rather
perverse. Our primary concern should be to discover whether there are any rules
at all which are accepted as applying to the events with which we are concerned
rather than spending our time quibbling about what they can be called. Peter
Hogg’s view of the matter seems to strike the most appropriate balance:

Very little turns on the question
whether a practice is a usage or a convention, because a convention is as
unenforceable as a usage. The most that can be said is that there is a stronger
moral obligation to follow a convention than a usage, and that departure from
convention may be criticized more severely than departure from usage.7

But whatever label we may use it
seems very clear that it is probably quite irrelevant that there appear to be
no examples in practice to illustrate the play of the conventions governing the
period following a dissolution of parliament. If the principal convention
exists in the form in which I will state it we ought not to expect to see any
examples at all.

The Caretaker Convention

What is known in some quarters as
the "caretaker convention" is easily described although it is nowhere
written down. It is a well-established principle of parliamentary government
that once parliament has been dissolved and an election campaign is under way
the government’s freedom of decision-making is firmly restricted and should be
confined to dealing with only routine matters of administration – apart, of
course, from any emergency situation which may arise.

More specifically, it is said that
three areas of decision-making in particular should be avoided in this period –
matters involving considerable controversy, matters which are not urgent (that
is to say, matters which can wait for a later decision without causing
irreparable damage), and matters where a decision would unreasonably bind the
freedom of decision-making of a future government. It is occasionally said as
well that matters involving the expenditure of very large sums of public money
should also be avoided.

There are two reasons for this
view, both of which would appear to be obvious. The first is that if parliament
is not in session (and may not be for a somewhat extended period of time) the
ordinary mechanisms for scrutinizing the government’s behaviour – question
time, a debate on the adjournment, motions for supply, and debate generally –
are not available.

Everyone knows that in a
parliamentary system the power of the executive is potentially enormous. It is
the existence of these mechanisms of "constructive obstruction"8 that
takes the edge off that power and assures the people that the government is
being kept responsible. But if they cannot be used there must be a compensating
reduction in the usual extent of the power of the government. The caretaker
convention addresses that issue.

The fundamental significance of
this observation - when it comes to the importance of maintaining responsible
government in our system - is hardly removed by the distinction which is made
between a government which has lost the confidence of the House of Commons and
one which has merely dissolved parliament in the ordinary course of approaching
the legal end of its term in office.9 What on earth can be the relevance –
constitutional or otherwise – of the fact that the government retains the
support of a substantial majority of the members of the House of Commons if
that House is never going to be called on to pass judgment?10

The second reason is, of course,
that an election campaign always entails the possibility of the government’s
defeat, and therefore the possibility that its leaders will not be able to take
responsibility for the consequences of their decisions. It follows that only
the most routine administrative decisions ought to be made in this period -
decisions, in short, which any government might make - again excepting an
emergency.

Some people object to this argument
on the ground that during an election campaign a government is surely very much
in the public view, and hardly able to do as it pleases. Professor Heard, for example,
puts it this way.

The dissolution of the legislature
is conducted to hold an election. The government is then being directly held
accountable by the electorate. There is no greater accountability than what
happens on election day.11

One may wonder, however, whether
the daily media conference - or the mindless scrum which occurs at each bus
stop on the leader’s tour - is any substitute for the cut and thrust of the
House of Commons, led by knowledgeable and skilled practitioners of the art of
opposition, as a means of reigning in the excesses of the government.12 The
prospect seems every bit as absurd as the suggestion which surfaces from time
to time that the press is just as able as the real opposition to maintain a
proper watch on the government.

There really is nothing to match
the effectiveness of the House of Commons itself as an agency for monitoring
and limiting the power of the executive. The purpose, after all, of
"constructive obstruction" is to persuade the government to back down,
or at least to take a second look at its proposals, and neither media scrums
nor the electorate nor leading editorials have ever had much success with that.

The British Practice

Although these observations seem
intuitively to make some kind of sense, on the face of things they are
difficult to substantiate even in a general way when we examine the practice of
the leading parliamentary democracies. In the United Kingdom, for example,
there does not appear to be any evidence of the caretaker convention, at least
in the sense that the customs associated with it are not part of the ordinary
language of British politics.13

Jennings makes it quite clear that
it is not common practice to appoint a formal caretaker government with very
restricted powers during the period of an election, although he cites the
exception made by Churchill in 1945, who chose this way of breaking up the
wartime coalition – and getting rid of the Liberal and Labour ministers in the
process – in preparation for the party fight which was bound to occur in the
forthcoming general election.14

But he does not explicitly address
the more general question of the behaviour of governments during the caretaker
period, saying only that even a government which has been defeated in the House
of Commons will stay in office until a new government materializes, so that
what he calls the "King’s service" may be carried on. I think,
however, that a moment’s reflection on the course of British politics since,
let us say, the end of the First World War will show that there has never been
an occasion when a British government made anything other than routine
decisions in the period following a dissolution of parliament.

Of course, the matter may well be
addressed in Great Britain by the principle of parliamentary sovereignty – the
rule that no parliament may bind a future parliament. It is easy to see how
something resembling the caretaker convention could be derived from that more
general understanding. If parliament cannot be permanently bound by the actions
of a prior parliament then surely it cannot be bound by the executive acting
without parliamentary consent.

The Australian Practice

In sharp contrast to the United
Kingdom the Australian practice has for some years been to limit the power of
the government in the caretaker period – but not by anything more than a set of
customs to which all parties have willingly subscribed. Their existence is
justified in almost exactly the same terms as set out above – the absence of a
popular chamber to which the government can be held responsible and the
possibility of a change of government as a result of the election. The
Australian conventions are described in the following way:

The basic caretaker conventions
require a government to avoid implementing major policy initiatives, making
appointments of significance or entering major contracts or undertakings during
the caretaker period and to avoid involving departmental officers in election
activities.

The basic conventions are directed
to the taking of decisions, and not to their announcement. Accordingly, the
conventions are not infringed where decisions taken before the caretaker period
are announced during the caretaker period. However, it is desirable, if the
decisions concern significant initiatives, that they be announced in advance of
the caretaker period in order to avoid controversy.15

These customary and conventional
practices at the federal level in Australia go back to the time of Sir Robert
Menzies in the 1950s – who was responsible for formally and explicitly initiating
them – but in fact there is some evidence that they may have been accepted as
existing informally for some time before that.16

They are, moreover, to be
distinguished from the more restrictive rules which generally apply to explicit
cases of caretaker governments such as that of Malcolm Fraser following the
Governor General’s dismissal of Gough Whitlam in 1975. Such governments are
ordinarily expected to do little more than attend to one or two specific tasks
before seeking a dissolution and a general election.

The general Australian practice
goes some considerable distance beyond these kinds of cases by laying down an
appropriate pattern of behaviour for any government which has dissolved
parliament and entered the election period.

The Canadian Practice

The Canadian practice would appear
to fall somewhere in between what happens in the United Kingdom and what
happens in Australia. As in Great Britain there is no formal reference to
anything which looks like the caretaker convention in the literature. But in
the summer of 1953 there was an exchange of letters in The Ottawa Journal
between Arthur Beauchesne, former Clerk of the House of Commons, and Professor
J.R. Mallory, where the two competing views were clearly set out. Although it
is rather overstated Beauchesne outlined the position which I would regard as
broadly correct in these terms.

It has always been the practice in
British democracies that the cabinet, in the period between dissolution and
general elections, only acts in matters that are absolutely necessary for the
ordinary conduct of affairs.

Our ministers are not now members
of parliament for the good reason that there is no parliament. They are private
citizens ...In the United Kingdom the administration which happens to be in
office during that period is called the "caretaker government" and
its actions are limited to mere departmental routine....

The doctrine is well-known and has
been respected by John A. Macdonald, Laurier, Borden, Mr. Meighen and Mackenzie
King.17

Professor Mallory’s response
dismissed this view more or less out of hand, but in a way which seems to the
contemporary reader to have missed Beauchesne’s point entirely. He wrote:

I am unaware of any example of this
practice which, in any event, could only be destructive to effective
constitutional government. It appears to be Dr. Beauchesne’s view that
ministers of the Crown are, after the dissolution of parliament, only private
citizens and that they thus have no right to carry out their responsibilities
of office, save for "mere departmental routine."

But ministers are not just private
citizens. They are the Crown’s ministers, responsible to the Crown for the
conduct of government. For them to lay down their responsibilities as the
Crown’s confidential advisors for the period of two months which must elapse
between the dissolution of Parliament and a general election, would be for them
flagrantly to dishonor their oaths as privy councillors and ministers of the
Crown.

It was never contemplated that we
should have in effect no government at all for a period of over two months just
because of the calling of a general election.18

This is, to say the least, a
peculiar argument in the circumstances. The issue is not whether the government
continues to govern during the caretaker period – that is to say, continues to
make decisions – but whether those decision are confined to the merely routine.

In other words, nothing
extraordinary is supposed to happen. Given these expectations following from
the practice Beauchesne described one may wonder what kind of event Professor
Mallory might have expected to see as a demonstration of the validity of
Beauchesne’s argument. Indeed, the very fact that he cannot point to anything
at all by way of example suggests that Beauchesne was right. For the fact of
the matter is that a quick examination of the behaviour of Canadian governments
in the caretaker period since, again, the end of the First World War shows no
case at all of decision-making out of the ordinary. Surely it is worth asking
whether this is entirely accidental?

Professor Mallory has expressed his
current view with much greater precision, although by implication traces of the
earlier view seem to persist.

When a government has been defeated
at the polls or in the House of Commons, it becomes an obligation of all party
leaders to assist in the formation of a new government. Until a new government
can be formed, it is the duty of the old one to remain in office. While in
office it still has the duty and the authority to govern, though a government
which has lost the confidence of the people or of the House of Commons can only
make routine decisions until a government which has the support of the House
can be formed.19

This is, of course, what I would
call the "conventional wisdom" on the question. After the election is
completed the course is clear on the basis of the result – either the existing
government has won and therefore carries on or it behaves with very great
circumspection until the new government can take office. Alternatively, the
existing government is only limited when it has lost the confidence of the
House of Commons. But we live in a democratic age, and the point made earlier
is worth repeating. It is surely a very short road between a government which
has lost its authority to govern because it has lost an election or has been
defeated in the House of Commons and a government which, in the nature of the
case, cannot answer to parliament because parliament does not exist.

In fact, however, there does now
seem to be some indication that the caretaker convention is at work in Canada.
The evidence given to the Special Senate Committee on the Pearson Airport
Agreements by the present Clerk of the Privy Council, Madam Jocelyne Bourgon,
was abundantly clear on the question in several different places. She had this
to say, for example, about the process of decision-making in the case of the
Pearson Airport Agreements, from her perspective on the situation as Deputy
Minister of Transport at the time, as the end of the negotiating period was
approaching:

But there was a need in my judgment
at that point in time to satisfy ourselves that it was indeed the wish of the
government to proceed. And that is not unusual by the way. I don’t want to
leave the impression there is anything unusual about that. There is a general
rule of conduct to act with caution as soon as Parliament is dissolved. The
purpose of seeking guidance is to make sure that those who have the power of
making these decisions are the ones making these decisions as opposed to those
who do not have the authority. So there was a need to ascertain that it was the
wish of the minister to proceed, and that was clarified, and his will was very
clear. And later on the same thing was sought from the Prime Minister.20

And again, describing the different
phases of the decision-making process as the summer of 1993 wound down to the
fall:

From the end of August till
dissolution of Parliament, September 8, we were still at the stage of
converting this general agreement into all the component pieces and agreements
required to give effect.

After Parliament was dissolved,
what happens in terms of conduct for officials is that there is this general
rule. It’s not a law. There is a general rule that from that point on, you must
act with caution. So the question comes, who is going to make the judgment as
to whether or not you’re cautious. Well, that’s not a judgment to be made for
officials. You go to your minister or the first minister, the Prime Minister,
depending on the circumstances.21

In these observations Madam Bourgon
seems only to be describing the appropriate caution which should be exercised
by public servants in a period when partisan feeling is likely to be more in
the air generally in Ottawa. But when pressed she came closer to the concerns I
am addressing. She described "two events" which caused her to pause.

There was a statement by the Leader
of the Opposition requesting publicly the Prime Minister to put everything - I
think he used the expression - in the freezer. The day after, ...I believe
there was also a statement by the Leader of the Opposition to the effect that
he would wish, should he form the government, to review the approach.

These two events raised in my mind
the need to receive guidance on the appropriateness of proceeding further,
which is closure on the 7th, but this time from the Prime Minister. Because the
Prime Minister is responsible for the behaviour of government during a period
of election. And the call having been made at the level of the Leader of the
Opposition, in my mind, it was not sufficient to simply ask guidance from the
minister at that point in time....

Now, it’s not for the Deputy
Minister of Transport to get on the phone and call the Prime Minister and say,
"I would wish to get guidance." You refer the matter to the clerk,
whose job it is to make sure that we respect tradition and values and due
process and so on. And when I raised my view with the clerk, the clerk was also
of the view that it was appropriate to seek guidance from the Prime Minister.
He did and gave me my instructions.22

It was the sudden evidence that the
issue was not a matter of routine decision-making – brought on by the Leader of
the Opposition’s forceful intervention – that caused Madam Bourgon to pause.
But there is more to it than that, as the following elaboration in response to
yet another question shows.

I think controversy is not the only
factor, ... I think the general rule of conduct to act with caution during an
election means that you would consider factors such as: Is it a transcription
that is going to bind future governments? What is the - are there alternatives?
Are there urgencies in the matter? Is there an obligation to act? Is there
controversy? Controversy is certainly a factor, but I would simply want to say
that it is not the only one you would consider, in which cases you would seek
guidance. There would be more than one factor which would be considered.23

With that observation, it seems to
me, Madam Bourgon effectively stated the existence of the caretaker convention
in Canada, or at the very least the existence of a very firm practice amongst
senior public servants in Ottawa. I have deliberately provided extended
quotations from her testimony because she has given us – for the first time – a
fascinating and important insight into the real character of decision-making in
these special circumstances. What she has said will surely become an important
part of the literature for students of our system, even if there is some
difficulty in trying to find examples in practice of the operation of the
caretaker rules.

In fact, that difficulty may not be
as great as has been suggested. One of the areas in which there has been said
to be a need for caution is the making of appointments after parliament has
been dissolved. Here the record over the years since the end of the First World
War is instructive. Mackenzie King was a major offender is this respect - in
1945 he recommended a total of 18 senatorial appointments during the caretaker
period (he had recommended 14 in 1940) – but after that the practice
effectively died out, and no such recommendation has been made at all since
1962.24 Although there is not the same complete absence of activity during the
caretaker period in recent years with lesser appointments – to diplomatic
posts, the senior public service, the bench, and various agencies boards and
commissions – the record suggests that what was done was for the most part
routine.

With contracts, on the other hand,
the record shows nothing except minor and routine confirmations of obligations
already accepted by the government, again going back to the end of the First
World War. Certainly there is nothing even remotely resembling the magnitude of
the Pearson Airport Agreements.25 It is difficult to avoid the conclusion that
this is due to a general reluctance on the part of successive Canadian
governments to consider such decisions during the caretaker period. Some
confirmation of this possibility may be found in Joe Clark’s refusal in 1979 to
go ahead with a decision to purchase over $2 billion worth of new fighter
aircraft. "It is my judgment," he said on the day after his
government was defeated, "that a government that has lost the confidence
of Parliament does not have the authority to make that decision."26

These limited observations,
together with Madam Bourgon’s testimony, make it clear that there must be an
understood system of rules at least within the Privy Council Office which
address the need for caution during the caretaker period. But this implies the
existence of mechanisms devoted to that purpose. Madam Bourgon has said that it
is the job of the Clerk "to make sure that we respect tradition and values
and due process." Others have described the Clerk as the custodian of
parliamentary conventions, customs, and practices. Not only is this obviously
the case, but it is clear as well that the Machinery of Government Group within
the Privy Council Office is specifically charged with ongoing responsibility
for monitoring the conduct of government from this perspective.27 In
fact, it is not too much to say that the Machinery of Government Group, under
the direction of the Clerk, has a responsibility to, in effect, teach new prime
ministers and new cabinet ministers what the rules of proper government are.
Where, one may ask, are these people going to get such lessons if not from
those whose job it is to know the answers?28

But in the end it is always up to
the Prime Minister to decide what will be done. Conventions, customs, and practices,
simply because they are not in any way linked to legality, are always political
in character. Their application depends upon judgments made in particular
circumstances, and even the most thoroughgoing convention - such as, let us
say, the federal representative character of the Canadian cabinet – can be
ignored on occasion if that becomes absolutely necessary.29 The best that may
be hoped for at such times is that the advice of a Clerk with many years of
experience will be enough to tilt the balance towards appropriate and
responsible behaviour. But however much the Clerk of the Privy Council may be
the custodian of all proper governmental practice he or she cannot compel the
Prime Minister to walk away from a decision the Prime Minister has decided to
make.

Beyond Convention - A Different
Political Dimension

That reflection naturally leads
back to the final decision to go ahead with the Pearson Airport Agreements. We
have no way of knowing what advice the then Clerk of the Privy Council, Glen
Shortliffe, gave to Prime Minister Campbell on that occasion. It is clear,
however, that while he is willing to recognize a general case for restricted
decision-making in the caretaker period Mr. Shortliffe regarded the Pearson
Airport Agreements as a "done deal" prior to the calling of the
election, and therefore the final authorization given on October 7th was merely
pro forma and effectively of no consequence.30 That is to say, the issue
of appropriate decision-making simply did not arise.

But there is an entirely different
kind of consideration that could be brought to bear on the question. The
decision to go ahead was clearly made at a time when the Prime Minister and
those around her must have known that her government was likely to be defeated.
The Gallup Poll published on September 22nd showed the Liberals at 37 percent
and the Conservatives at 30 percent (down from 36 percent in August). A month
later the Gallup Poll had the Conservatives at 16 percent - a massive decline.
One does not need to see internal party polls to know that on October 7th,
roughly midway between these two public polls, the government must already have
been close to only 20 percent. That is to say, a major defeat was effectively
unavoidable.31

Whatever was being said for public
consumption at the time it is impossible to believe that the Prime Minister was
not aware of this catastrophic political situation. The hard facts of the case
must therefore be that she chose to authorize the signing of the Pearson
Airport Agreements at a time when she knew that she would be unable to take
responsibility for that decision. This looks very close to the work of a
government which has already lost the moral authority to govern.

How, then, are we to assess the
dimensions of the decision that was made? Clearly the issue had by October 7th
met all the criteria for caution described above. It was clearly a matter of
considerable controversy - the then Leader of the Opposition had vowed to
cancel the agreement if his party won the election - which ought to have been
enough on the basis of the examples I have described to stop the process. An
enormous amount of public money was involved, there was no demonstrated urgency
to settle the question, and the arrangement locked the government of Canada
into a 57-year leasing agreement with no cancellation clause, all of which
should equally have made it an inappropriate candidate for decision-making in
the caretaker period. No doubt the Pearson Airport Agreements can be overturned
(and, indeed, are in process of being overturned) but that reversal comes,
apparently, at a very high price.

A responsible Prime Minister ought
to have refused to have anything to do with such a proposal even if she thought
she was going to be re-elected. Knowing that she was not should have been
enough to put the lid on it. To say that her decision was a constitutionally
inappropriate exercise of power is, in my view, to put it mildly. We must hope
that the wise men and women who judge these things will say in future that the
Conservative defeat in the 1993 federal election can be taken as a precedent
demonstrating that our people will not accept such a gross violation of the
rules for appropriate government behaviour - and that, indeed, the caretaker
convention is alive and well in Canada.

Notes

1. Aspects of this question were
touched on in passing during Professor Andrew Heard’s testimony regarding Bill
C-22 before the Standing Senate Committee on Legal and Constitutional Affairs
at the end of 1994, but not in sufficient detail to explore the whole range of
what may be at stake. See Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs, no. 18, December 8, 1994.

2. Cabinet Government, 3rd
edition (Cambridge, 1961), 5-7.

3. See my "A Quite
Constitutional Prayer: Reflections on the Character of the Royal Power of
Dissolution in Canada," paper presented to a Department of Political
Science colloquium, University of Waterloo, February, 1983.

4. See, for example, Andrew Heard, Canadian
Constitutional Conventions: The Marriage of Law and Politics, (Toronto,
1991), 13.

5. The Law and the Constitution,
5th edition (London, 1959), 81.

6. "The Courts and the
Conventions of the Constitution," UNB Law Journal, vol. 33 (1984), 34.
These passages from Forsey and Jennings are the ones usually employed to
demonstrate the absolute need for a precedent to establish the existence of a
convention.

7. Constitutional Law of Canada,
2nd edition (Toronto, 1985), 16.

8. I owe this wonderful phrase to
the late Eugene Forsey.

9. Virtually all of the authorities
make this distinction. See, for example, Andrew Heard, "Constitutional
Conventions and Election Campaigns," Canadian Parliamentary Review,
vol. 18, no. 3 (Autumn, 1995), 10; and J. R. Mallory, The Structure of
Canadian Government (Toronto, 1971), 75-76.

10. No doubt constitutional
conventions cannot be held to depend on such changeable things as public
opinion polls, but in this context one would hope that the likelihood of the
government being returned to office might have a bearing on our judgment.

12. For an elaboration of these
points see my "On the Virtue of Being a Nuisance," Past and
Present (April, 1985), 2-7 (a publication of the Faculty of Arts of the
University of Waterloo).

13. A careful search of the
principal texts produces no reference to the practice at all. On the other
hand, chapter 15 of Jennings’ Cabinet Government is so laced with a view
of the relationship between the Government and Parliament which depends on the
need for the Government to respect the House of Commons and, in particular, the
Opposition, that it is difficult to believe he does not accept some version of
the caretaker convention. Elsewhere he says "Democratic government has its
Marquess of Queensberry rules, and public opinion is the referee."
Cabinet Government, 3rd edition (Cambridge, 1961), 16. Perhaps it is simply
that British election campaigns are considerably shorter than in Canada - the
usual length is about 30 days - and ministers are generally not in London but
in their home constituencies. In short, there is nothing going on at the
centre.

14. Cabinet Government, 3rd
edition (Cambridge, 1961), 86 (note) and 531. Churchill simply tendered his
resignation as Prime Minister, after only perfunctory consultation with the
Liberal and Labour ministers, and was then appointed anew by the King to
continue as Prime Minister.

15. "Caretaker Conventions and
Other Pre-Election Practices," Annual Report of the Department of the
Prime Minister and Cabinet, 1986-1987, 39.

16. Letter to the author from M. S.
Keating, Secretary to the Cabinet, Government of Australia, November 21, 1995.

17. The Ottawa Journal, July
1, 1953.

18. The Ottawa Journal, July
7, 1953.

19. The Structure of Canadian
Government (Toronto, 1971), 75.

20. Proceedings of the Special
Senate Committee on the Pearson Airport Agreements, no. 19, September 14,
1995, 57.

21. Ibid, 59.

22. Ibid., 59-60.

23. Ibid. 100. It is worth
noting that the report Robert Nixon prepared for the Prime Minister stated the
caretaker convention in almost exactly similar terms. See Pearson Airport
Review, November 29, 1993 (Office of the Prime Minister), 8.

24. John Diefenbaker recommended
the appointment of two senators (J. Campbell Haig and Harry A. Willis) on June
15, 1962; election day was June 18. It is sometimes wrongly claimed that John
Turner violated what now appears to be accepted practice on this score in 1984.
In fact, the three individuals in question (Eymard Corbin, Tom Lefebvre, and
Charles Turner) - whom the Canadian Parliamentary Guide shows as
appointed to the Senate on the day of dissolution - were actually appointed the
day before.

25. Because, in the nature of the
case, an example which might meet the precedent test would not have seen the
light of day, I have asked a number of individuals much closer than I am to the
history of decision-making by the federal government since 1945 for their
recollections on this point. I have agreed to leave their names off the record
but I can report that none of them can think of a single case matching the
significance of the Pearson Airport Agreements.

26. "The jet fighters stall
near target," Financial Post, December 22, 1979. This is not, of
course, a strict application of the caretaker convention as I have described
it, since Clark’s government had been defeated in the House of Commons. But it
is surely interesting evidence of the awareness of at least one Prime Minister
that there are special rules for these occasions. Although it also deals only
with the question of appropriate decision-making for a defeated government an
article from the same period by Eugene Forsey is instructive. See "Defeated
government should exercise restraint in its actions," Ottawa Citizen,
January 10, 1980.

27. I have been much helped in
understanding this process of decision-making by a number of people formerly
associated with the Privy Council Office.

28. This aspect of the work done by
the Machinery of Government Group within the Privy Council Office does not seem
to have received the recognition it is due. It should perhaps be added to the
comprehensive descriptions found in Kenneth Kernaghan and David Siegel, Public
Administration in Canada, 3rd edition (Toronto, 1995), 200; and Robert J.
Jackson and Doreen Jackson, Politics in Canada: Culture, Institutions,
Behaviour and Public Policy, 3rd edition (Scarborough, Ontario, 1994),
305-308.

29. Absolutely fundamental conventions,
such as the rule that a government which has lost the confidence of the House
of Commons must resign, obviously cannot be treated in this way, and a
government which sought to circumvent these kinds of rules could expect to hear
very quickly from the Governor General.

30. See his testimony on these
points in Proceedings of the Special Senate Committee on the Pearson Airport
Agreements, no. 24, September 25, 1995, 60-99. One might ask why, if
this was the case, the Prime Minister’s agreement was needed at all, but that
question seems to have eluded the Special Senate Committee.

31. No political party has ever won
a Canadian election - nor even minority government status - with that level of
support.